CR License, LLC v. Liuzhengxin
Claim Number: FA2002001883247
Complainant is CR License, LLC (“Complainant”), represented by Jennifer A. Van Kirk of Lewis Roca Rothgerber Christie LLP, Arizona. Respondent is Liuzhengxin (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <canyonranchathome.com> (the “disputed domain name”), registered with Alibaba Cloud Computing (Beijing) Co., Ltd.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 13, 2020; the Forum received payment on February 13, 2020.
On February 17, 2020, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <canyonranchathome.com> disputed domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the names. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 26, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 17, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@canyonranchathome.com. Also on February 26, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 20, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Since 1979, Complainant has operated Canyon Ranch, one of the most well-known spa resorts in the world. Canyon Ranch offers spa services on numerous cruise ships internationally, in addition to its locations in Woodside, California, Tucson, Arizona, Las Vegas, Nevada, and Lenox, Massachusetts, as well as providing a diverse array of products and services, including real estate, medical and counseling, fitness, bath and home goods, cosmetics, and other wellness-related goods and services. Complainant’s business is frequently cited in media and has repeatedly been named the World’s Best Spa by Travel and Leisure Magazine and Condé Nast Traveler.
Complainant is the owner of the “Canyon Ranch” brand and is the owner of numerous CANYON RANCH trademark registrations in the United States Patent and Trademark Office (the “USPTO”), including, inter alia, United States Reg. No. 1,350,012, which was first used on December 9, 1979, and was registered on July 16, 1985.
These registrations identify and distinguish Complainant’s various goods and services. Complainant owns trademark registrations for CANYON RANCH trademarks covering a wide variety of goods and services, from health resort and spa services to real estate services. The CANYON RANCH Marks have been in continuous use in commerce in the United States since 1979. Complainant also owns numerous registrations for the CANYON RANCH mark in China (collectively, the “CANYON RANCH Mark”).
Complainant has a registered domain name incorporating the CANYON RANCH Mark, namely <canyonranch.com>, which points to a website that contains information about CANYON RANCH services, products and spa locations, including information on CANYON RANCH services offered to guests at home, as well as products from CANYON RANCH’s ‘Home Collection’ being offered for sale on such website.
The disputed domain name was registered on January 2, 2020 and resolves to a website containing adult-oriented, or pornographic, content. The disputed domain name incorporates Complainant’s CANYON RANCH Mark in its entirety, with the addition of the descriptive terms “at home” followed by the generic Top-Level Domain (“gTLD”) “.com”. Thus, the disputed domain name is confusingly similar to the CANYON RANCH Mark.
Respondent has no rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s CANYON RANCH Mark. In addition, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to display adult-oriented material.
Respondent also registered and used the disputed domain name in bad faith. Specifically, the Complainant’s CANYON RANCH Mark is incorporated into the disputed domain name in its entirety. The use of a domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. Further, by using the disputed domain name to attract Internet traffic seeking information on Complainant’s at home-oriented goods and services to a site displaying adult content, Respondent disrupts Complainant’s business and tarnishes its goodwill and reputation, which is also evidence of bad faith. Lastly, bad faith may also be found where the Respondent knew or should have known of the Complainant’s registration and use of the CANYON RANCH Mark prior to registering the disputed domain name. It strains credulity to believe that Respondent had not known of the Complainant or its CANYON RANCH Mark when registering the disputed domain name, especially since the disputed domain name incorporates Complainant’s CANYON RANCH Mark in its entirety.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights in the CANYON RANCH Mark. The Disputed Domain Name is confusingly similar to Complainant’s CANYON RANCH Mark. Further, Complainant has established that Respondent lacks rights or legitimate interests in the use of the disputed domain name and that Respondent registered and is using the disputed domain name in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that a complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by a respondent is identical or confusingly similar to a trademark or service mark in which a complainant has rights; and
(2) respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Preliminary Issue: Language of the Proceedings
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese, in accordance with UDRP Rule 11(a).
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, giving regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See The Wawanesa Mutual Insurance Co. v. Li Hou Chang, FA 2001001881099 (Forum March 3, 2020) (deciding that the proceedings may be conducted in English without prejudice to the Respondent, because the Forum provided notice of the proceedings and had sent other procedural documents to the Respondent in both Chinese and English, yet the Respondent had not provided a Response or made any other submission in this case).
In the present case, Respondent has chosen not to respond to the Complaint. The website to which the disputed domain name resolves features the term “Canyon Ranch,” which is the dominant portion of the disputed domain name, as well as the English words “at” and “home,” all of which do not carry any specific meaning in the Chinese language. Pursuant to Rule 11(a), giving regard to the circumstances of the case, the Panel determines that fairness and justice to both parties and due expedition are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
Furthermore, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Identical and/or Confusingly Similar
The Panel concludes that Complainant has shown to have rights in the CANYON RANCH Mark based upon registration of the CANYON RANCH Mark with the USPTO (as well as in China), as referenced above. Registration of a mark with the USPTO confers upon a complainant trademark rights for purposes of the Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The Panel also concludes that the disputed domain name is confusingly similar to the CANYON RANCH Mark under the Policy ¶ 4(a)(i). The disputed domain name incorporates Complainant’s CANYON RANCH Mark in its entirety, with the addition of descriptive terms “athome” followed by the gTLD “.com”.
Additions of generic and/or descriptive terms and a gTLD to a complainant’s mark do not negate any confusing similarity between a disputed domain name and a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”).
See also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where a disputed domain name contains a complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
Rights or Legitimate Interests
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
As Respondent did not respond to the Complaint, Respondent cannot have carried its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name. The Panel notes that, given the facts here, Respondent would have been hard-pressed to furnish availing arguments, had it chosen to respond:
To wit, Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the CANYON RANCH Mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. Where no response is filed, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name, even when the registrant appears to be associated with the complainant. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”).
Here, the WHOIS identifies “Liuzhengxin” as the registrant. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to resolve to a website that displays adult entertainment material. Using a confusingly similar domain name in connection with adult-oriented material does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA 1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). As such, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
Registration and Use in Bad Faith
The Panel concludes that Respondent registered and is using the disputed domain name in bad faith.
First, the use of a domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. Bad faith under Policy ¶ 4(b)(iv) can be found where a respondent uses a confusingly similar domain name to falsely indicate an association with a complainant. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006).
Second, bad faith can also be found where the resolving webpage displays adult-oriented material. See H-D U.S.A., LLC v. Nobuyoshi Tanaka / Personal, FA1312001534740 (Forum Jan. 31, 2014) (“Therefore, the Panel concludes that Respondent is acting in bad faith because Respondent is using the <harley-davidsonsales.com> domain name to tarnish Complainant’s HARLEY-DAVIDSON mark, as the Panel also finds that the content displayed on the resolving website constitutes adult-oriented content.”). Accordingly, the Panel finds that Respondent attempted to commercially benefit off Complainant’s CANYON RANCH Mark in bad faith under Policy ¶ 4(b)(iv).
Lastly, the Panel finds that the Respondent knew or should have known of Complainant’s rights in its CANYON RANCH Mark when registering the disputed domain name. As noted above, the Complainant’s CANYON RANCH Mark is widely known. Respondent registered the disputed domain name in January of 2020, more than forty years after the CANYON RANCH Mark was first used in commerce in the United States, and many years after Complainant secured similar registrations in China, where the Respondent resides. It therefore strains credulity to believe that Respondent had not known of the Complainant or its CANYON RANCH Mark when registering the disputed domain name, especially since the disputed domain name consists of the CANYON RANCH Mark with the mere addition of descriptive terms. Thus, as here, prior knowledge of a complainant’s trademarks prior to registering a domain name is sufficient to find bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (finding actual knowledge due to the domain name chosen and the use made of it). Consequently, the Panel concludes that Respondent had actual knowledge of Complainant’s rights in the CANYON RANCH Mark prior to registering the disputed domain names, constituting bad faith under the Policy ¶ 4(a)(iii).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <canyonranchathome.com> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: March 25, 2020
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